In re the Accounting of Kelly

The decedent agreed to pay to his wife “ for the support and maintenance of her son, John J. Kelly, the sum of $100, monthly, just so long as the boy shall remain in college; the said payments to commence as of the date June 1, 1930.” In accordance with that agreement, it was provided in the decree of divorce that “ the defendant do pay to the petitioner for the support and maintenance of the son of the parties to this suit, John J. Kelly, the sum of $100 monthly as long as the said son shall continue to be a student at college said payments should commence as of the first day of June, 1930, that said payment should be in lieu of and in satisfaction of all claims for alimony or support of the petitioner.” Regardless of whether or not the Court of Chancery of New Jersey retained power to amend that provision in the decree of divorce, we agree with the determination of the courts below that the decedent’s estate must pay any sum due and unpaid in accordance with the terms of the obligation imposed upon the decedent with his consent. The question remains whether the decedent was under any obligation to pay $100 a month after his son received a degree upon graduation from Yale College which he entered in the autumn of 1930, and from which he graduated in June, 1934.

The word “ college ” is not a word of art which, by common understanding, has acquired a definite, unchanging significance in the field of education. Its meaning varies with its context. Though at times it is used to denote any institution of higher learning, including institutions for

The decedent did not, I think, unequivocally assume an obligation to pay $100 a month for the support of his son so long as his son might desire to continue as a student in any institution of higher learning here or abroad. The boy’s mother, as Judge Rippey points out, was a woman of substantial means, willing and able to pay expenses for the son at an English college or university, far beyond the expenses of even wealthy students at American colleges. I find here no basis for any inference that the father -contemplated that it would be “ necessary ” for the mother to pay the large amounts she chose to pay for the education of the “ boy ” even after the “ boy ” became a man, or that the sum agreed upon “ was the largest amount that the resources of the father would permit him to contract to pay” to the mother “byway of reimbursement.” At least a question of fact was in my opinion presented by the evidence and the finding of fact by the courts below is fully justified. We may not disturb that finding if there is any evidence to sustain it.

We agree that all the other questions presented upon the appeal should be determined as indicated in the opinion of Judge Rippey.

(dissenting in part). Peter A. Kelly, a resident of Cornwall-on-Hudson, Orange county, died on December 3, 1937, leaving a last will and testament dated October 15, 1937, in which he named his wife, May Roach Kelly, whom he married in October, 1931, and the HighlandQuassaick National Bank and Trust Company of Newburgh as executors of his estate. The will was admitted to probate on January 4, 1938, and letters testamentary were issued to those named by deceased under which they qualified as executors of his estate, entered upon the discharge of their duties and are still acting as such. The decedent left a son, John J. Kelly, the issue of a former marriage, who was born on January 2, 1913. The son’s mother was Mary C. Kelly, whom the testator had married on September 6, 1911. She was granted an interlocutory decree of divorce from testator in New Jersey on December 13, 1930, which was made final in regular course on March 14, 1931.

Mary C. Kelly filed two claims with the executors against the estate. One was for unpaid items of one hundred dollars pér month with interest claimed to be due from the deceased by virtue of the provisions of the divorce decree and the other was for the return of a diamond ring which she claimed belonged to her. Both claims were rejected by the executors and stipulation was given that determination of the claims might be made upon the final accounting. The account of the executors was filed on October 1, 1938, but contained no reference to the diamond ring. The son filed objections to the account, among which was an objection to the failure of the executors to account for the ring which he claimed to be a part of the estate of the deceased. On the hearing upon the claims and objections, May Roach Kelly asserted that the ring belonged to her

The action for absolute divorce on the ground of willful, continued and obstinate desertion was commenced by Mary C. Kelly under the laws of the State of New Jersey while both parties were residents of that State by personal service of process upon her husband within that State. It was found, as alleged by her, that she had been a bona fide resident of the State continuously for two years next preceding the commencement of the action. In such circumstances, the New Jersey statute authorizes the granting of an absolute divorce (2 Rev. Stat. ch. 50). Her then husband appeared generally by counsel although he defaulted in pleading. A stipulation was entered into by counsel in open court upon the hearing before the Special Master which, among other things, provided:

“ It is stipulated and agreed that the defendant, Peter A. Kelly will pay to the petitioner for the support and maintenance of her son, John J. Kelly, the sum of $100.00, monthly, just so long as the boy shall remain in college; the said payments to commence as of the date June 1, 1930.

“It is further stipulated that the Master shall so report and this provision may be employed in the final decree made in this cause.

“It is further stipulated and agreed that the above mentioned payments to be made by the defendant, shall be in lieu and in satisfaction of all claims of alimony or support by the petitioner.”

Jurisdictional requirements having been satisfied, after hearing and the taking of proof, the interlocutory decree of divorce was granted and duly filed with the agreement incorporated therein in the following words: “And it is further ordered, adjudged and decreed that the defendant do pay to the petitioner for the support and maintenance of the son of the parties to this suit, John J. Kelly, the sum of $100 monthly as long as the said son shall continue to be a student at college said payments should commence as of the first day of June, 1930, that said payment should be in lieu of and in satisfaction of all claims for alimony or support of the petitioner.”

The decree nisi was later confirmed by the final decree as above indicated. The first claim of Mary C. Kelly was based upon the foregoing stipulation and decrees for the sum of $11,047.50 claimed to be due to her from the deceased in monthly installments of one hundred dollars from June, 1930, to June, 1937, inclusive, with interest from the respective dates when the installments became due.

In the action for divorce, since the Court of Chancery had jurisdiction of the parties and of the subject-matter (Revised Statutes of New Jersey, [1937] vol. 1, tit. 2, ch. 50 [N. J. Stat. Annotated, tit. 2, ch. 50]), the decree is conclusive upon the parties in this State (Jones v. Jones, 108 N. Y. 415 ; Guggenheim v. Wahl, 203 N. Y. 390 , 396, 397). The constitutional requirement that full faith and credit shall be given to the judgments and decrees of other States requires, where applicable, that such other States shall give to the decree such force and effect as it was entitled to receive, in the State in which it was rendered (Haddock v. Haddock, 201 U. S. 562 , 567). Applicable alike is that requirement to judgments in actions at law and to decrees in equity and of courts of chancery (Harding v. Harding, 198 U. S. 317 , 335). Consequently, respondents seek to maintain here

The Appellate Division has sustained the abstract right of Mary C. Kelly to recover on the basis of the agreement between the parties as embodied in the decree. The fact is that neither the husband in his lifetime, nor the son nor the claimant at any time, has attempted to alter the agreement or the decree. The agreement was partly performed and the decree partly complied with by the husband and never objected to or attacked. The agreement was valid under the laws of either State (Sobel v. Sobel, 99 N. J. Eq. 376 ; Clark v. Fosdick, 118 N. Y. 7 ) and was valid and enforceable everywhere until altered or changed or set aside by the parties or by a court of competent jurisdiction. It is unimportant whether the obligation of support, maintenance and education on the part of the father toward the son existed generally only during the minority of the son (Snover v. Snover, 13 N. J. Eq. 261 ). The obligation to support the wife continued during the husband’s lifetime and would be enforceable in any appropriate jurisdiction unless sufficiently and providently and unalterably satisfied by agreement of the parties or by duly authorized adjudication of a court. There was adequate consideration for the agreement. In this case, the agreement made by the

It seems to me that the lower courts have misconstrued the provisions of the agreement and decree. The son was a student at Yale College at the time the decree of divorce was entered and was graduated from that institution in 1934. The Surrogate found upon ample evidence, and the finding was approved by the Appellate Division, that the testator paid the claimant the sum of $4,075 by virtue of the obligation created. It was found by the Surrogate that such payment constituted full compliance with the terms of the decree. As a basis for such finding, the Surrogate held that he might take judicial notice that the college year did not exceed ten months and that “ there is nothing in the stipulation, nor in the circumstances of the parties having regard also to the amount of the testator’s estate that would indicate anything more than the usual four years course was intended to be covered by this stipulation.” The Appellate Division modified the finding so as to allow the claimant one hundred dollars per month for each of twelve months for each of four years. To the knowledge of the testator, his son continued his college course in Kings College, Cambridge, England, for three years after graduation from Yale and was attending Harvard University at the time of his father’s death. During the years the boy was in college, the boy’s mother, herself being of substantial means independent of his father, paid all expenses for his support, maintenance and education out of her own resources in an amount averaging between ten thousand and twelve thousand dollars per year. The stipulation and decree provided in unequivocal language that the mother should be paid the sum of one hundred dollars per month as long as the testator’s son should continue to be a student at college. Clearly, it may be inferred that it was the

The conclusion follows that the terms of the agreement between the parties as embodied in the stipulation and divorce decree required the Surrogate to hold that claimant was entitled to receive from the estate of the deceased such an amount as would total the monthly payments provided for from June 1, 1930, for twelve months each year, to June, 1937, in accordance with the claim, less $4,075 which has been found to have been paid to her by the testator under his aforesaid obligation to pay, with interest upon the monthly items unpaid as they became due.

The ring in question consisting of a valuable diamond in a platinum white gold setting was purchased by Mary C. Kelly with her individual funds in 1928. She purchased the stone and had it placed in a “ gypsy ” setting especially planning to give it to her son. She attempted to deliver it to him but he refused to accept delivery on the ground that it was “ too flashy.” There was no delivery to the son, actual, constructive or symbolical, or to any one else for or on his behalf, in fact or in law, and acceptance by him could not be implied. Anything short of delivery strips the attempted gift “ of the quality of completeness which distinguishes an intention to give, which alone amounts to nothing, from the consummated act, which changes the title. The intention to give is often established by most satisfactory evidence, although the gift fails ” (Beaver v.

At the time of the attempted gift to the son, the claimant and the deceased were living together as husband and wife with the son who had not then entered college. The ring was the separate property of the claimant. She had title to it. The Surrogate has found that the testator wore the ring for a number of years and that it was in the possession of the deceased until shortly before his death when, during his last illness, he handed it to his wife, May Roach Kelly, for safekeeping. The widow makes no assertion that she, at any time, came into its possession from claimant. There is neither testimony nor finding as to when or under what particular circumstances the deceased came into possession of the ring. The Surrogate held that the fact that the deceased had possession of the ring was sufficient proof of a gift of the ring to him and that decision has been affirmed by the Appellate Division.

The mere fact, if it were a fact, under the circumstances disclosed at the time of the attempted gift to the son, that the ring was then left in the possession of the deceased, gave rise to no presumption of any intent on the part of the claimant to give the property to the husband or to divest herself of title thereto. There is no evidence that she then left the ring in his possession. But had it appeared that claimant then left the ring in the possession of the husband while they were living together as husband and wife at the same place and under the circumstances here disclosed, that possession would be insufficient to establish a valid gift to him (Brink v. Gould, 7 Lans. 425 ) in the absence of proof of a perfected gift. If there were any change at all in the status of the property in the mere circumstance that she let the husband take possession of it and use it, it would amount to nothing more than that the

The order appealed from should be modified so as to provide for the allowance of the two claims of Mary C. Kelly to the extent'indicated in this opinion, with costs

Loughran, Finch and Conway, JJ., concur with Lehman, Ch. J.; Rippey, J., dissents in part in opinion in which Lewis and Desmond, JJ., concur.

Ordered accordingly.